Forgy v. Rutledge

• Decision Date: 03 December 1915
• Citation: 180 S.W. 90,167 Ky. 182
• Parties: FORGY ET AL. v. RUTLEDGE.
• Court: Kentucky Court of Appeals

180 S.W. 90

167 Ky. 182

FORGY ET AL. v. RUTLEDGE.

Court of Appeals of Kentucky.

December 3, 1915

Appeal from Circuit Court, Daviess County.

Action by James W. Rutledge against J. M. Forgy and another. Judgment for plaintiff, and defendants appeal. Reversed, and remanded for new trial.

Louis I. Igleheart, of Owensboro, for appellants.

La Vega Clements and Birkhead & Wilson, all of Owensboro, for appellee.

SETTLE J.

The appellee, James W. Rutledge, recovered in the court below a verdict and judgment against the appellants, J. M. Forgy and Rice G. Jesse, for $300 by way of damages for personal injuries, caused, as alleged in the petition, by thier negligence in running against him, on a street of the city of Owensboro, an automobile owned by them and which they were at the time, as further alleged, operating at an unusual and dangerous rate of speed. The verdict was returned and judgment entered March 12, 1914. Appellants in due time filed a motion and grounds for a new trial, and the motion was overruled March 19, 1914, at which time they prayed an appeal, which, by an order then entered, the circuit court granted. The appeal thus granted was not prosecuted, but on February 13, 1915, appellants filed a transcript of the record in the office of the clerk of this court, and therewith filed and entered a motion and prayer for an appeal in this court, as provided by rule 20 thereof (169 S.W. vii) adopted in conformity to the act of March 17, 1914 (Laws 1914, c. 23, § 3), "regulating appeals in civil cases when amount in controversy, exclusive of interest and costs is as much as $200 and less than $500." The motion of appellee to dismiss the appeal cannot be sustained, and it therefore overruled, because, when made, no appeal had been granted by this court.

As the act of March 17, 1914, had not become effective when appellants were granted an appeal in the circuit court, they were entitled, as a matter of right, to rely upon that appeal, had they filed in the office of the clerk of this court a transcript of the record 20 days before the second term thereof intervening after the granting of the appeal by the circuit court; but, failing to do this, they lost the right to rely on or prosecute the appeal granted in the circuit court, which must be treated as having been abandoned by them. Therefore the question whether the appeal now prayed in this court should be granted is controlled by the act of March 17, 1914, which became effective 90 days after that date and was in force when the motion therefor was made in this court. Ockerman v. Woodward, 162 Ky. 134, 172 S.W. 92; Gough v. I. C. R. Co., 166 Ky. 568, 179 S.W. 449. So the question first to be determined is whether the appeal prayed in this court shall be granted, and as our examination of the record satisfies us the substantial rights of the appellants were prejudiced by error of the circuit court in instructing the jury, and that the ends of justice require the reversal of its judgment, we think it proper to grant the appeal prayed by them in this court, which is done accordingly.

Two grounds are urged by appellants for the reversal of the judgment: (1) That the verdict is flagrantly against the evidence; (2) that the trial court erred in instructing the jury.

The first of these grounds is without merit. It chiefly rests upon the theory that appellants were not sufficiently identified as the persons who owned and were operating the automobile at the time it struck and injured the appellee. It is sufficient to say that at least one witness positively identified the appellant Forgy as an occupant of the automobile, and he and the appellant Jesse were further seen by another witness to be in and operating the machine that afternoon shortly before the injury was inflicted. It is true appellants themselves testified that their automobile did not run against or injure appellee, and in this they were corroborated by at least one other witness; but it was for the jury to determine the truth of the matter from all of the evidence presented, and as it cannot be said that there was no evidence to support the verdict, we are not at liberty to disturb it.

The second complaint must be sustained as to instruction No. 1, which is incorrect in one particular. In defining the measure of damages, it improperly allowed a recovery for the physical injuries sustained by appellee, in addition to physical and mental suffering, and further allowed a recovery for permanent impairment of his ability to earn money. As thus worded, the instruction might well have been understood by the jury as permitting them to allow double damages for the injuries sustained. Such an instruction has been expressly condemned by this court in a number of cases. Thus in N., C. & St. L. R. Co. v. Henry, 158 Ky. 88, 164 S.W. 310, it is said:

"Instruction No. 2 on the measure of damages is erroneous. It will be observed that, after authorizing a recovery for special damages by way of physicians' and medical bills and lost time, it further authorizes a recovery 'for injuries to his person and for physical and mental suffering, if any of either, suffered on account of said injuries, and for permanent injury to him, if any, lessening his power to earn money.' Where a person is permanently injured, he may, in addition to special damages, which must be alleged and proved, recover for the physical and mental suffering, and the permanent reduction of his power to earn money. In other words, the injuries to his person are measured by his pain and suffering, and the permanent reduction of his power to earn money. It is not contemplated that he shall receive damages 'for injuries to his person,' and in addition thereto damages for physical and mental suffering, and for the permanent reduction of his power to earn money. To do so is necessarily to allow double damages. We have frequently had this question before us, and have invariably held that an instruction similar to the one in question is erroneous. L. & E. R. Co. v. Crawford, 155 Ky. 727 ; L. & N. R. Co. v. Logsdon, 114 Ky. 746 [71 S.W. 905, 24 Ky. Law Rep. 1566]; N., C. & St. L. R. Co. v. Banks, 156 Ky. 609 ." L. & N. R. Co. v. Moore, 150 Ky. 692; L. & E. Ry. Co. v. Crawford, 155 Ky. 723, 160 S.W. 267.

On another trial the instruction as to the measure of damages should be made to read as follows:

If the jury find for the plaintiff, they should allow him such a sum in damages as will reasonably and fairly compensate him for his physical and mental suffering, if any of either, for the loss of time, if any, and such permanent impairment, if any, of his power to earn money as may have resulted to and been directly caused him by the negligence of the defendants complained of, if there was such negligence; but the damages altogether, if any are allowed the plaintiff, should not exceed the amount claimed in the petition, viz., $5,000.

Appellants also complain of so much of instruction No. 3 as told the jury that appellants should not have operated the automobile at a greater rate of speed than 15 miles an hour; it being their contention that the law declaring that motor vehicles shall not be run at a greater rate than 15 miles an hour refers to their use on public highways or roads outside of the corporate limits of a city or town, and has no application to the operation of such machines on the streets of a city or town, citing in support of this contention the case of Webb v. Moore, 136 Ky. 708, 125 S.W. 152, in the opinion of which it is said:

"Section 2739g of the Kentucky Statutes, regulating the running of motor vehicles on public highways, does not apply to the operation and use of automobiles in

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